LONDON NUCLEAR WARFARE TRIBUNAL Evidence,
Commentary, and Judgment

The existence of such crimes and offences and the concept of personal
criminal responsibility are recognized and affirmed by paragraph 498 of
the U.S. Field Manual on the Laws of Land Warfare.
The Navy and Airforce have similar provisions. These manuals do also
assert the non-unlawfulness of using nuclear weapons which is somewhat
of a paradox.

The manuals expressly provide that "conspiracy, direct incitement,
and attempts to commit, as well as complicity in the commission of
crimes against peace, crimes against humanity and war crimes are
punishable".

The Tribunal notes a remarkable inconsistency here between training and
instructions. Officers are told that they cannot rely on the defence of
"superior orders" and further that under U.S. military code,
one is under an obligation to refuse to obey unlawful orders.

The manuals also blithely ignore the de Martens Clause
which obliges a state to justify the use of a new weapon under the
existing norms of the Laws of War. The manuals and the de Martens
Clause are therefore irreconcilable.

Examples were presented to the Tribunal in which U.S. military
personnel either refused to obey orders or asked to be relieved of
their command as they did not feel they could carry out their orders.

In a pastoral letter of 1982, American Roman Catholic Bishops stated:
"It is never permitted to direct nuclear or conventional weapons
to the indiscriminate destruction of whole cities or vast areas of the
population".

This does call into question whether or not orders would be followed;
some apparently would not be. The military in the U.S. is composed of
30% Catholics. Does this bring into question the reliability of
Catholics---should they be relieved from positions of command? Others,
who are not religious, may also refuse to obey orders as they hold
international law in high esteem.

Professor Boyle
has spent a good deal of time with the military and believes that they
are strong supporters of the laws of war. This is mainly because the
laws of war were originally designed to protect them.

There is also a large amount of pride and self-esteem among the military
that they are doing a worthwhile job defending their country; "a
good job done professionally". To bomb cities indiscriminately
would lead them to be regarded as butchers by civilians, on the scale
of a Hitler or Stalin, not the "honourable profession of a
soldier". This has greater importance than might otherwise be
perceived in the light of the Vietnam experience when some military
personnel became ashamed to wear uniforms.

Professor Boyle
offered the evidence that although the US Army Field Manual has been
used many times to justify the proposition that the use of nuclear
weapons can be legal, in fact in terms it never states as such. He
quoted the US 1956 Army Field Manual:
"The use of explosive 'atomic weapons', whether by air, sea, or
land forces, cannot as such [emphasis added by editor] be
regarded as violative of international law in the absence of any
customary rule of international law or international convention
restricting their employment". He went on to point out that a
close reading of this paragraph merely indicates that the use of
nuclear weapons cannot be regarded as violative of international law
solely because they are atomic as opposed to
conventional weapons. In other words, there is no one
conventional or customary rule of international law that specifically
prohibits the use of atomic weapons by that name. The
quoted paragraph never states that the actual use of nuclear weapons
would not be in violation of the international laws of humanitarian
armed conflict and the laws of war. He also pointed out that even the
similar statement in the US 1955 Navy Manual which made a grievous
error by proclaiming: "In the absence of express prohibition, the
use of such weapons against enemy combatants and other military
objectives is permitted", never went so far as to assert that
nuclear weapons could be used lawfully against civilian population
centres, as opposed to legitimate military targets. There is therefore
the very interesting likelihood that most contemplated uses of nuclear
weapons by US forces are illegal under their own field manuals, despite
the cynical interpretation by some commentators.